There is furtive glee in the eyes of such as Nancy Keenan, president of NARAL Pro-Choice America. The reason for it is that she calculates that the effrontery of South Dakota's legislature will bring on massive retaliation by the Supreme Court.

Chinese vigilantes rejoiced a few weeks ago when a group of dissenters published a call for diminished censorship. They were confident about what would happen, and it did: Beijing brought on reinvigorated party-line censorship. Ms. Keenan and some of her followers in NARAL Pro-Choice America figure that what South Dakota has done will compel the Supreme Court to act -- and perhaps in such a way as to smash the little signs of life in the pro-life moment which, in South Dakota, gave rise to regicidal inclinations.

The governor of South Dakota, Michael Rounds, signed a bill that would outlaw the practice of abortion except in certain extreme cases. In signing, he said things which, a generation ago, would have been thought too routine to notice, let alone pause over, but today are fighting words. "The true test of a civilization," he said, "is how well people treat the most vulnerable and most helpless in their society. The sponsors and supporters of this bill believe that abortion is wrong because unborn children are the most vulnerable and most helpless persons in our society. I agree with them."

Jumping Jupiter!

Here in three sentences the governor of South Dakota tramples on the neck of cherished modern icons. To begin with, he refers to a fetus as a "child." He refers to "unborn children" as "helpless." Again, they are "persons." And he invokes the heart of civilized society to give them succor.

Mike Rounds was a college student on the sacred holy day of the abortionists in 1973 when Roe v. Wade was pronounced by the Supreme Court. He was the oldest child in his family; 10 siblings would come along. The bill outlawing abortion restores to South Dakota a ban that until 1973 had been the law in almost every state of the union. Rounds was only 18 years old when the Supreme Court excogitated the proposition that the Constitution conferred on everybody the right to eliminate an unborn child.

In the years since then, various states and various jurisdictions have sought to refine the right to abort. The South Dakota law could be the springboard to the direct reversal of Roe. But it is thought by many abortion supporters that this totalist challenge, posed by South Dakota, will necessarily be met by a totalist re-endorsement of Roe by the Supreme Court.

Now everybody concedes that all this will take a few years. Nobody managing an abortion clinic in South Dakota is about to shut it down. There will be injunctions sought against the new law's enforcement. Both sides have promised to bring money, as required, to mobilize every legal thought, afterthought and presumptive thought, arguing in conflicting directions.

The choicers count five members of the Supreme Court who are publicly committed in favor of Roe v. Wade. They have this fear, that a sitting member of the court will retire in the period immediately ahead, when the incumbent president is still there to nominate a successor. That would mean five votes, counting Roberts and Alito as dormant dissenters from Roe v. Wade, who would, in the nightmare scenario, renounce the 1973 decision as forcefully as the court, in Brown v. Board of Education in 1954, renounced the segregation authorized by Plessy v. Ferguson in 1896.

But assume that before the Supreme Court acts, injunctions against the new law fail. Assume, then, that there would be a period in which, in South Dakota, women could not get an abortion. What would they do? Well, of course, there is the alternative that they could bear the child whose life they had brought on. But if that alternative were excluded, what then?

Someone seeking relief could go north to North Dakota, or south to Nebraska. Or east to Minnesota, or west to Wyoming. We are talking about bus rides.

And of course so would it be if Roe were reversed. It is inconceivable that all the states of the union would imitate South Dakota. To demonstrate just how progressive is its vision, the state of Connecticut voted contingently some years ago, that if ever abortion were proscribed elsewhere, pilgrims would be welcome in Connecticut, where abortion rights would be faithfully observed.

We are very much driven, in modern days, by the democratic imperative. Well, the people of South Dakota have expressed themselves on a political question, resolving that unborn life is life notwithstanding. And they hold high what they deem, in their governor's words, their dedication to stand by "the most vulnerable and most helpless persons in our society."

I have to re-read this. Buckley is always so erudite. There's alaso always a word I'd NEVER heard of before: excogitated. I get the meaning but I am going to have to look it up in my mother's 1914 Webster dictionary. Ya gotta love the guy. There are WAY too few like him.

I also happen to agree with him 100% on this.

6
posted on 03/08/2006 6:31:13 AM PST
by starfish923
(Socrates: It's never right to do wrong.)

The Supreme Court can't just "take it on" until it works its way there through various other courts. The challenge for the pro-abortion people is that if they let this stand, all they've lost is South Dakota where I understand there is only one small killing center, but if they push it through the courts, they stand to lose a lot more. And the fact that they can't predict the composition of the Court by the time the case gets there makes it even more of a gamble.

Scalia made some interesting remarks recently on abortion before a think tank. The topic was the use and relevancy of foreign law in interpreting and applying the Constitution. He said that he would believe the sincerety of those who do when they start using foreign law on abortion cases. The US is in the distinct minority when it comes to allowing abortion on demand with no restrictions. Even the UK, Italy, and many other Western countries have restrictions. The US is among the 50+ countries that don't have any.

I think you're right, to an extent. I can't see the pro-aborts taking it past the state courts if they lose. But what if they win in the State Supreme Court? Is South Dakota willing to take this all the way, knowing the risks?

How long is that going to take, though? It should not take but a few days for a district court to throw it out, and clearly it will because as noted, abortion is not going to end in SD anytime soon, so that implies that the district court will very shortly make some kind of a ruling. That leaves the question of how long it will take the appellate court to deal with the case. I'd say less than a year.

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